In Vermont, both parents have to provide financial support for their children, but the non-custodial parent (meaning, the parent who spends less than 50% of the available time with the child) is usually the parent who winds up paying child support because the custodial parent spends a greater percentage of time with the child. The purpose of child support is to make sure that children are financially supported by their parents in the same way they would have been had their parents stayed together.
Vermont law applies guidelines to establish a child support obligation for the non-custodial parent. “Guidelines” are simply a mathematical formula that the court uses to decide how much each parent should pay. The guidelines are primarily based on the gross and available income each parent has.
“Gross income” refers to income from all sources. It includes salary, wages, gifts, prizes, alimony, and even some kinds of government benefits, like worker’s compensation and unemployment benefits.
“Available income,” on the other hand, is what is left over after alimony, other child support obligations, dependent health insurance, and state and federal taxes are subtracted from gross income.
The child support guidelines will provide a number based on gross income, available income, the percentage of time the child spends with each parent, and the total number of children.
For more information on this topic, please see Child Support in Vermont, by Teresa Wall-Cyb.
The parent who pays child support (“the obligor”) can ask for a modification (change) to the child support obligation if the previous order seems too high. Similarly, the parent who receives child support (“the obligee”) can ask the judge to modify the previous order if there doesn’t seem to be enough money to provide for the child.
Vermont’s judges have the power to modify child support if the parent asking for the modification can show that there’s been a “change in circumstances” since the prior support order was issued. A change of circumstances has to be real, substantial, and unanticipated or the court can’t even consider modifying child support.
Vermont law provides that a change in circumstances is “real and substantial” if it would make the child support payment at least 10% higher (in the case of an upward modification) or 10% (in the case of a downward modification).
A change is “unanticipated” when it is unexpected. If it’s not unexpected, it’s probably not a change in circumstances for purposes of Vermont law. For example, if an obligor intentionally and voluntarily quits a job, the obligor can’t turn around and ask the court to reduce the child support obligation, because the loss of a job was deliberate and planned.
Modifications are common when a parent’s wages and income are affected in some way. If you are the obligor and you lost your employment in an involuntary manner, like a layoff, your diminished income would be a real and substantial change of circumstances and that would be a good reason to ask for a downward modification. On the other hand, if you are the obligee and you learn that the obligor got a promotion and is earning a higher salary, you could argue to a court that there’s been a real and substantial change of circumstances warranting a higher child support award. In both cases, the child is entitled to the level of support that would have been given had the parents stayed together.
Changing the parenting plan (also known as a visitation schedule) or custody arrangement might be another reason for a modification, because the child support guidelines calculation is partially based on the amount of time the child spends with each parent.
Vermont courts have also found that there's a change of circumstances when a child or parent becomes disabled or seriously ill after the issuance of the original child support order, when the child's health insurance changes or becomes unavailable, or when a parent needs a suspension of automatic wage withholding (which Vermont uses to collect child support from obligors).
If you’re an obligor and you only work seasonally, and if that fact was already taken into consideration when the court set up your initial child support calculation, then you can’t ask for a modification of child support when your employment wraps up at the end of the season. This is because the loss of your employment was not unanticipated—you already knew it was going to happen.
If you are seeking either an upward or downward modification, the first thing you should do is review and evaluate the other parent’s income. For as long as an obligor has to pay court-ordered child support, Vermont law requires both parents to exchange recent pay stubs, the last year’s income tax returns, and any other documents that prove gross income. You have the right to request and receive this information every year.
Once you’ve had a look at the other parent’s income and you have a better sense of whether the court might grant a modification, it’s time to pull together your own papers. It's easiest to get a modification package that has all the papers you need, which you can usually get at your local courthouse. You should prepare a Petition to Modify Child Support, an Affidavit (a sworn statement which explains why you want the modification and verifies that there's a real, substantial and unanticipated change of circumstances), and a Financial Affidavit (another sworn statement that lays out your financial picture). You'll have to pay a filing fee, but if you can't afford that, the clerk can help you fill out forms to get the fee reduced or waived. Finally, you will need to serve these documents on the other parent. Once all this is done, a hearing can be scheduled in front of a judge, who will decide whether to grant the modification.
It's very important that both parents complete the required financial documents, because if they don't, the court can assume that they are earning:
Vermont law allows either parent to request a judicial review of the child support case every three years. This is a special opportunity to ask the court to modify the order, because you don't have to show that there's been a change of circumstances.
Under Vermont law, the fact that you have a new family doesn’t cause a change of circumstances that's real, substantial, and unanticipated. This is largely because marriage and having children are activities that have to be planned.
Even though having a second family won't give rise to a modification, you can still tell the judge about it at your three year review. The judge then has the option to consider the information or disregard it.
Even though coming to court can be somewhat time consuming, you really should ask a judge to approve your agreement. You and the other parent may informally agree for now, but if you ever have a dispute, your informal agreement has no legal effect and a judge will go back to, and enforce, the original written order.
If you're the obligor and you've been paying less than the court-ordered amount because of an informal agreement that wasn't judicially approved, you could be accruing arrearages (unpaid money) under the terms of the original order. Arrearages can have serious legal consequences, up to and including the loss of tax refunds and driver's licenses, and even jail time. You should pay what you owe under the existing court order unless and until the judge issues a new order.
Child Support Modification, by the Vermont Department for Children and Families
Child Support in Vermont: a Handbook for Parents, by the Vermont Department for Children and Families